Mental Illness Behind Bars

CASE LAW

Held: Deliberate indifference by prison personnel to a prisoner’s serious illness or injury constitutes cruel and unusual punishment contravening the Eighth Amendment. Here, however, respondent’s claims against Gray do not suggest such indifference, the allegations revealing that Gray and other medical personnel saw respondent on 17 occasions during a 3-month span and treated his injury and other problems. The failure to perform an X-ray or to use additional diagnostic techniques does not constitute cruel and unusual punishment, but is, at most, medical malpractice cognizable in the state courts. The question whether respondent has stated a constitutional claim against the other petitioners, the Director of the Department of Corrections and the warden of the prison, was not separately evaluated by the Court of Appeals, and should be considered on remand. Pp. 429 U. S. 101-108.

1. By subjecting petitioner to a more lenient commitment standard and to a more stringent standard of release than those generally applicable to all other persons not charged with offenses, thus condemning petitioner to permanent institutionalization without the showing required for commitment or the opportunity for release afforded by ordinary civil commitment procedures, Indiana deprived petitioner of equal protection. Cf. Baxstrom v. Herold,383 U. S. 107. Pp. 406 U. S. 723-731.

2. Indiana’s indefinite commitment of a criminal defendant solely on account of his lack of capacity to stand trial violates due process. Such a defendant cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain competency in the foreseeable future. If it is determined that he will not, the State must either institute civil proceedings applicable to indefinite commitment of those not charged with crime or release the defendant. Greenwood v. United States,350 U. S. 366, distinguished. Pp. 406 U. S. 731-739.

1. The case is not rendered moot by the fact that the State has ceased administering antipsychotic drugs to Harper against his will. A live case or controversy remains, since there is no evidence that Harper has recovered from his mental illness; he continues to serve his sentence in the state prison system; and there is a strong likelihood that he may again be transferred to the Center, where officials would seek to administer antipsychotic medication pursuant to the Policy. Thus, the alleged injury likely would recur but for the decision of the State Supreme Court. Pp. 494 U. S. 218-219.

2. The Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if he is dangerous to himself or others and the treatment is in his medical interest. Although Harper has a liberty interest under the Clause in being free from the arbitrary administration of such medication, the Policy comports with substantive due process requirements, since it is reasonably related to the State’s legitimate interest in combating the danger posed by a violent, mentally ill inmate. The Policy is a rational means of furthering that interest, since it applies exclusively to mentally ill inmates who are gravely disabled or represent a significant danger to themselves or others; the drugs may be administered only for treatment and under the direction of a licensed psychiatrist; and there is little dispute in the psychiatric profession that the proper use of the drugs is an effective means of treating and controlling a mental illness likely to cause violent behavior. Harper’s contention that, as a precondition to antipsychotic drug treatment, the State must find him incompetent, and then obtain court approval of the treatment using a “substituted judgment” standard, is rejected, since it does not take account of the State’s legitimate interest in treating him where medically appropriate for the purpose of reducing the danger he poses. Similarly, it has not been shown the alternatives of physical restraints or seclusion would not accommodate his rights at de minimis cost to valid penological interests. Pp. 494 U. S. 219-227.

(a) The Due Process Clause does not require a judicial hearing before the State may treat a mentally ill prisoner with antipsychotic drugs against his will. Harper’s not insubstantial liberty interest, when considered with the government interests involved and the efficacy of the particular procedural requirements, is adequately protected, and perhaps better served, by allowing the decision to medicate to be made by medical professionals rather than a judge. It cannot be assumed that a mentally disturbed patient’s intentions, or a substituted judgment approximating those intentions, can be determined in a single judicial hearing apart from the realities of frequent and ongoing medical observation. Nor can it be ignored that requiring judicial hearings will divert scarce prison resources from the care and treatment of mentally ill inmates. Moreover, the risks associated with antipsychotic drugs are for the most part medical ones, best assessed by medical professionals. The Policy contains adequate procedural safeguards to ensure that the prisoner’s interests are taken into account. In particular, the independence of the decisionmaker is adequately addressed, since none of the hearing committee members may be involved in the inmate’s current treatment or diagnosis, and the record is devoid of evidence that staff members lack the necessary independence to provide a full and fair hearing. Pp. 494 U. S. 228-235.

(b) The Policy’s procedures satisfy due process requirements in all other respects. The provisions mandating notice and the specified hearing rights satisfy the requirement of a meaningful opportunity to be heard, and are not vitiated by prehearing meetings between the committee members and staff absent evidence of resulting bias or that the actual decision is made before the hearing. The hearing need not be conducted in accordance with the rules of evidence, and the state court’s “clear, cogent, and convincing” standard of proof is neither required nor helpful when medical personnel are making the judgment required by the Policy. An inmate may obtain judicial review of the committee’s decision, and the trial court found that the record complied under the Policy was adequate to allow such a review. Nor is the Policy deficient in not allowing representation by counsel, since the provision of an independent lay advisor who understands the psychiatric issues is sufficient protection given the medical nature of the decision to be made. Pp. 494 U. S. 235-236.

1. The Act’s definition of “mental abnormality” satisfies “substantive” due process requirements. An individual’s constitutionally protected liberty interest in avoiding physical restraint may be overridden even in the civil context. Jacobson v. Massachusetts, 197 U. S. 11, 26. This Court has consistently upheld involuntary commitment statutes that detain people who are unable to control their behavior and thereby pose a danger to the public health and safety, provided the confinement takes place pursuant to proper procedures and evidentiary standards. Foucha v. Louisiana, 504 U. S. 71,80. The Act unambiguously requires a pre commitment finding of dangerousness either to one’s self or to others, and links that finding to a determination that the person suffers from a “mental abnormality” or “personality disorder.” Generally, this Court has sustained a commitment statute if it couples proof of dangerousness with proof of some additional factor, such as a “mental illness” or “mental abnormality,” see, e. g., Heller v. Doe, 509 U. S. 312, 314-315, for these additional requirements serve to limit confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control. The Act sets forth comparable criteria with its pre commitment requirement of “mental abnormality” or “personality disorder.” Contrary to Hendricks’ argument, this Court has never required States to adopt any particular nomenclature in drafting civil commitment statutes and leaves to the States the task of defining terms of a medical nature that have legal significance. Cf. Jones v. United States, 463 U. S. 354, 365, n. 13. The legislature is therefore not required to use the specific term “mental illness” and is free to adopt any similar term. Pp. 356-360.

2. The Act does not violate the Constitution’s double jeopardy prohibition or its ban on ex post facto lawmaking. pp. 360-371.

(a) The Act does not establish criminal proceedings, and involuntary confinement under it is not punishment. The categorization of a particular proceeding as civil or criminal is a question of statutory construction. Allen v. Illinois, 478 U. S. 364, 368. Nothing on the face of the Act suggests that the Kansas Legislature sought to create anything other than a civil commitment scheme. That manifest intent will be rejected only if Hendricks provides the clearest proof that the scheme is so punitive in purpose or effect as to negate Kansas’ intention to deem it civil. United States v. Ward, 448 U. S. 242, 248-249. He has failed to satisfy this heavy burden. Commitment under the Act does not implicate either of the two primary objectives of criminal punishment: retribution or deterrence. Its purpose is not retributive: It does not affix culpability for prior criminal conduct, but uses such conduct solely for evidentiary purposes; it does not make criminal conviction a prerequisite for commitment; and it lacks a scienter requirement, an important element in distinguishing criminal and civil statutes. Nor can the Act be said to act as a deterrent, since persons with a mental abnormality or personality disorder are unlikely to be deterred by the threat of confinement. The conditions surrounding confinement-essentially the same as conditions for any civilly committed patient-do not suggest a punitive purpose. Although the commitment scheme here involves an affirmative restraint, such restraint of the dangerously mentally ill has been historically regarded as a legitimate nonpunitive objective. Cf. United States v. Salerno, 481 U. S. 739, 747. The confinement’s potentially indefinite duration is linked, not to any punitive objective, but to the purpose of holding a person until his mental abnormality no longer causes him to be a threat to others. He is thus permitted immediate release upon a showing that he is no longer dangerous, and the longest he can be detained pursuant to a single judicial proceeding is one year. The State’s use of procedural safeguards applicable in criminal trials does not itself turn the proceedings into criminal prosecutions. Allen, supra, at 372. Finally, the Act is not necessarily punitive if it fails to offer treatment where treatment for a condition is not possible, or if treatment, though possible, is merely an ancillary, rather than an overriding, state concern. The conclusion that the Act is nonpunitive removes an essential prerequisite for both Hendricks’ double jeopardy and ex post facto claims. Pp. 360-369.

(b) Hendricks’ confinement does not amount to a second prosecution and punishment for the offense for which he was convicted. Because the Act is civil in nature, its commitment proceedings do not constitute a second prosecution. Cf. Jones, supra. As this commitment is not tantamount to punishment, the detention does not violate the Double Jeopardy Clause, even though it follows a prison term. Baxstrom v. Herold, 383 U. S. 107. Hendricks’ argument that, even if the Act survives the “multiple punishments” test, it fails the “same elements” test of Blockburger v. United States, 284 U. S. 299, is rejected, since that test does not apply outside of the successive prosecution context. Pp. 369-370.

(c) Hendricks’ ex post facto claim is similarly flawed. The Ex Post Facto Clause pertains exclusively to penal statutes. California Dept. of Corrections v. Morales, 514 U. S. 499, 505. Since the Act is not punishment, its application does not raise ex post facto concerns. Moreover, the Act clearly does not have retroactive effect. It does not criminalize conduct legal before its enactment or deprive Hendricks of any defense that was available to him at the time of his crimes. Pp.370-371.

1. The Eighth Circuit had jurisdiction to hear the appeal. The District Court’s pretrial order was an appealable “collateral order” within the exceptions to the rule that only final judgments are appealable. The order conclusively determines the disputed question whether Sell has a legal right to avoid forced medication. Coopers & Lybrand v. Livesay, 437 U. S. 463, 468. It also resolves an important issue, for involuntary medical treatment raises questions of clear constitutional importance. Ibid. And the issue is effectively unreviewable on appeal from a final judgment, ibid., since, by the time of trial, Sell will have undergone forced medication-the very harm that he seeks to avoid and which cannot be undone by an acquittal. Pp.175-177.

2. Under the framework of Washington v. Harper, 494 U. S. 210, and Riggins v. Nevada, 504 U. S. 127, the Constitution permits the Government involuntarily to administer antipsychotic drugs to render a mentally ill defendant competent to stand trial on serious criminal charges if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the trial’s fairness, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests. Pp. 177-183.

(a) This standard will permit forced medication solely for trial competence purposes in certain instances. But these instances may be rare, because the standard says or fairly implies the following: First, a court must find that important governmental interests are at stake. The Government’s interest in bringing to trial an individual accused of a serious crime is important. However, courts must consider each case’s facts in evaluating this interest because special circumstances may lessen its importance, e. g., a defendant’s refusal to take drugs may mean lengthy confinement in an institution, which would diminish the risks of freeing without punishment one who has committed a serious crime. In addition to its substantial interest in timely prosecution, the Government has a concomitant interest in assuring a defendant a fair trial. Second, the court must conclude that forced medication will significantly further those concomitant state interests. It must find that medication is substantially likely to render the defendant competent to stand trial and substantially unlikely to have side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting a defense. Third, the court must conclude that involuntary medication is necessary to further those interests and find that alternative, less intrusive treatments are unlikely to achieve substantially the same results. Fourth, the court must conclude that administering the drugs is medically appropriate. Pp.177-181.

(b) The court applying these standards is trying to determine whether forced medication is necessary to further the Government’s interest in rendering the defendant competent to stand trial. If a court authorizes medication on an alternative ground, such as dangerousness, the need to consider authorization on trial competence grounds will likely disappear. There are often strong reasons for a court to consider alternative grounds first. For one thing, the inquiry into whether medication is permissible to render an individual nondangerous is usually more objective and manageable than the inquiry into whether medication is permissible to render a defendant competent. For another, courts typically address involuntary medical treatment as a civil matter. If a court decides that medication cannot be authorized on alternative grounds, its findings will help to inform expert opinion and judicial decisionmaking in respect to a request to administer drugs for trial competence purposes. Pp. 181-183.

3. The Eighth Circuit erred in approving forced medication solely to render Sell competent to stand trial. Because that court and the District Court held the Magistrate’s dangerousness finding clearly erroneous, this Court assumes that Sell was not dangerous. And on that hypothetical assumption, the Eighth Circuit erred in reaching its conclusion. For one thing, the Magistrate did not find forced medication legally justified on trial competence grounds alone. Moreover, the experts at the Magistrate’s hearing focused mainly on dangerousness. The failure to focus on trial competence could well have mattered, for this Court cannot tell whether the medication’s side effects were likely to undermine the fairness of Sell’s trial, a question not necessarily relevant when dangerousness is primarily at issue. Finally, the lower courts did not consider that Sell has been confined at the Medical Center for a long time, and that his refusal to be medicated might result in further lengthy confinement. Those factors, the first because a defendant may receive credit toward a sentence for time served and the second because it reduces the likelihood of the defendant’s committing future crimes, moderate the importance of the governmental interest in prosecution. The Government may pursue its forced medication request on the grounds discussed in this Court’s opinion but should do so based on current circumstances, since Sell’s condition may have changed over time. Pp. 183-186.

The court-mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights and is authorized by the PLRA. Pp. 12–41.

(a) If a prison deprives prisoners of basic sustenance, including adequate medical care, the courts have a responsibility to remedy the resulting Eighth Amendment violation. See Hutto v. Finney, 437 U. S. 678, 687, n. 9. They must consider a range of options, including the appointment of special masters or receivers, the possibility of consent decrees, and orders limiting a prison’s population. Under the PLRA, only a three-judge court may limit a prison population. 18 U. S. C. §3626(a)(3). Before convening such a court, a district court must have entered an order for less intrusive relief that failed to remedy the constitutional violation and must have given the defendant a reasonable time to comply with its prior orders. §3626(a)(3)(A). Once convened, the three-judge court must find by clear and convincing evidence that “crowding is the primary cause of the violation” and “no other relief will remedy [the] violation,” §3626(a)(3)(E); and that the relief is “narrowly drawn, extends no further than necessary… , and is the least intrusive means necessary to correct the violation,” §3626(a)(1)(A). The court must give “substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” Ibid. Its legal determinations are reviewed de novo, but its factual findings are reviewed for clear error. Pp. 12–15.

(1) The merits of the decision to convene are properly before this Court, which has exercised its 28 U. S. C. §1253 jurisdiction to determine the authority of a court below, including whether a three-judge court was properly constituted.Gonzalez v. Automatic Employees Credit Union, 419 U. S. 90, 95, n. 12.Pp. 15–16.

(2) Section 3626(a)(3)(A)(i)’s previous order requirement was satisfied in Coleman by the Special Master’s 1995 appointment and in Plata by the 2002 approval of a consent decree and stipulated injunction. Both orders were intended to remedy constitutional violations and were given ample time to succeed—12 years in Coleman, and 5 years in Plata.Contrary to the State’s claim, §3626(a)(3)(A)(ii)’s reasonable time requirement did not require the District Courts to give more time for subsequent remedial efforts to succeed. Such a reading would in effect require courts to impose a moratorium on new remedial orders before issuing a population limit, which would delay an eventual remedy, prolong the courts’ involvement, and serve neither the State nor the prisoners. The Coleman and Plata courts had a solid basis to doubt that additional efforts to build new facilities and hire new staff would achieve a remedy, given the ongoing deficiencies recently reported by both the Special Master and the Receiver. Pp. 16–19.

(c) The three-judge court did not err in finding that “crowding [was] the primary cause of the violation,” §3626(a)(3)(E)(i). Pp. 19–29.

(1) The trial record documents the severe impact of burgeoning demand on the provision of care. The evidence showed that there were high vacancy rates for medical and mental health staff, e.g., 20% for surgeons and 54.1% for psychiatrists; that these numbers understated the severity of the crisis because the State has not budgeted sufficient staff to meet demand; and that even if vacant positions could be filled, there would be insufficient space for the additional staff. Such a shortfall contributes to significant delays in treating mentally ill prisoners, who are housed in administrative segregation for extended periods while awaiting transfer to scarce mental health treatment beds. There are also backlogs of up to 700 prisoners waiting to see a doctor for physical care. Crowding creates unsafe and unsanitary conditions that hamper effective delivery of medical and mental health care. It also promotes unrest and violence and can cause prisoners with latent mental illnesses to worsen and develop overt symptoms. Increased violence requires increased reliance on lockdowns to keep order, and lockdowns further impede the effective delivery of care. Overcrowding’s effects are particularly acute in prison reception centers, which process 140,000 new or returning prisoners annually, and which house some prisoners for their entire incarceration period. Numerous experts testified that crowding is the primary cause of the constitutional violations. Pp. 19–24.

(2) Contrary to the State’s claim, the three-judge court properly admitted, cited, and considered evidence of current prison conditions as relevant to the issues before it. Expert witnesses based their conclusions on recent observations of prison conditions; the court admitted recent reports on prison conditions by the Receiver and Special Master; and both parties presented testimony related to current conditions. The court’s orders cutting off discovery a few months before trial and excluding evidence not pertinent to the issue whether a population limit is appropriate under the PLRA were within the court’s sound discretion. Orderly trial management may require discovery deadlines and a clean distinction between litigation of the merits and the remedy. The State points to no significant evidence that it was unable to present and that would have changed the outcome here. Pp. 24–26.

(3) It was permissible for the three-judge court to conclude that overcrowding was the “primary,” but not the only, cause of the violations, and that reducing crowding would not entirely cure the violations. This understanding of the primary cause requirement is consistent with the PLRA. Had Congress intended to require that crowding be the only cause, the PLRA would have said so. Pp. 26–29.

(d) The evidence supports the three-judge court’s finding that “no other relief [would] remedy the violation,” §3626(a)(3)(E)(ii). The State’s claim that out-of-state transfers provide a less restrictive alternative to a population limit must fail because requiring transfers is a population limit under the PLRA. Even if they could be regarded as a less restrictive alternative, the three-judge court found no evidence of plans for transfers in numbers sufficient to relieve overcrowding. The court also found no realistic possibility that California could build itself out of this crisis, particularly given the State’s ongoing fiscal problems. Further, it rejected additional hiring as a realistic alternative, since the prison system was chronically understaffed and would have insufficient space were adequate personnel retained. The court also did not err when it concluded that, absent a population reduction, the Receiver’s and Special Master’s continued efforts would not achieve a remedy. Their reports are persuasive evidence that, with no reduction, any remedy might prove unattainable and would at the very least require vast expenditures by the State. The State asserts that these measures would succeed if combined, but a long history of failed remedial orders, together with substantial evidence of overcrowding’s deleterious effects on the provision of care, compels a different conclusion here. Pp. 29–33.

(e) The prospective relief ordered here was narrowly drawn, extended no further than necessary to correct the violation, and was the least intrusive means necessary to correct the violation. Pp. 33–41.

(1) The population limit does not fail narrow tailoring simply because prisoners beyond the plaintiff class will have to be released through parole or sentencing reform in order to meet the required reduction. While narrow tailoring requires a “ ‘ “fit” between the [remedy’s] ends and the means chosen to accomplish those ends,’ ” Board of Trustees of State Univ. of N. Y. v. Fox,492 U. S. 469, 480, a narrow and otherwise proper remedy for a constitutional violation is not invalid simply because it will have collateral effects. Nor does the PLRA require that result. The order gives the State flexibility to determine who should be released, and the State could move the three-judge court to modify its terms. The order also is not overbroad because it encompasses the entire prison system, rather than separately assessing each institution’s need for a population limit. The Coleman court found a systemwide violation, and the State stipulated to systemwide relief in Plata. Assuming no constitutional violation results, some facilities may retain populations in excess of the 137.5% limit provided others fall sufficiently below it so the system as a whole remains in compliance with the order. This will afford the State flexibility to accommodate differences between institutions. The order may shape or control the State’s authority in the realm of prison administration, but it leaves much to the State’s discretion. The order’s limited scope is necessary to remedy a constitutional violation. The State may move the three-judge court to modify its order, but it has proposed no realistic alternative remedy at this time. Pp. 33–36.

(2) The three-judge court gave “substantial weight” to any potential adverse impact on public safety from its order. The PLRA’s “substantial weight” requirement does not require the court to certify that its order has no possible adverse impact on the public. Here, statistical evidence showed that prison populations had been lowered without adversely affecting public safety in some California counties, several States, and Canada. The court found that various available methods of reducing overcrowding—good time credits and diverting low-risk offenders to community programs—would have little or no impact on public safety, and its order took account of such concerns by giving the State substantial flexibility to select among the means of reducing overcrowding. The State complains that the court approved the State’s population reduction plan without considering whether its specific measures would substantially threaten public safety. But the court left state officials the choice of how best to comply and was not required to second-guess their exercise of discretion. Developments during the pendency of this appeal, when the State has begun to reduce the prison population, support the conclusion that a reduction can be accomplished without an undue negative effect on public safety. Pp. 37–41.

2. The three-judge court’s order, subject to the State’s right to seek its modification in appropriate circumstances, must be affirmed. Pp. 41–48.

(a) To comply with the PLRA, a court must set a population limit at the highest level consistent with an efficacious remedy, and it must order the population reduction to be achieved in the shortest period of time reasonably consistent with public safety. Pp. 41–42.

(b) The three-judge court’s conclusion that the prison population should be capped at 137.5% of design capacity was not clearly erroneous. The court concluded that the evidence supported a limit between the 130% limit supported by expert testimony and the Federal Bureau of Prisons and the 145% limit recommended by the State Corrections Independent Review Panel. The PLRA’s narrow tailoring requirement is satisfied so long as such equitable, remedial judgments are made with the objective of releasing the fewest possible prisoners consistent with an efficacious remedy. Pp. 42–44.

(c) The three-judge court did not err in providing a 2-year deadline for relief, especially in light of the State’s failure to contest the issue at trial. The State has not asked this Court to extend the deadline, but the three-judge court has the authority, and responsibility, to amend its order as warranted by the exercise of sound discretion. Proper respect for the State and for its governmental processes require that court to exercise its jurisdiction to accord the State considerable latitude to find mechanisms and make plans that will promptly and effectively correct the violations consistent with public safety. The court may, e.g., grant a motion to extend the deadline if the State meets appropriate preconditions designed to ensure that the plan will be implemented without undue delay. Such observations reflect the fact that the existing order, like all ongoing equitable relief, must remain open to appropriate modification, and are not intended to cast doubt on the validity of the order’s basic premise. Pp. 44–48.

ARTICLES

People with Mental Illnesses Involved in the Criminal Justice System by Judge Steve Leifman

Abstract: Nationwide, jails and prisons have become the largest psychiatric facilities in most states. It is estimated that there are nearly 14 times as many people with mental illnesses in jails and prisons in the United States as there are in all state psychiatric hospitals combined.

The initial closing of state hospital beds beginning in the 1950s and 1960s was a response to institutions which had largely become warehouses providing little more than custodial confinement. In 1963, Congress passed the Community Mental Health Centers Act which was intended to create a network of community-based mental health providers that would replace failing and costly state hospitals, and integrate people with mental illnesses back into their home communities with comprehensive treatment and services. Unfortunately, the comprehensive network of community mental health centers and services envisioned never materialized. The community mental health system that did emerge is too often fragmented with poorly integrated services, and enormous gaps in treatment and disparities in access to care.

Today, there are three significant areas of policy and practice contributing to the disproportionate involvement of people with serious mental illnesses in justice system: 1) Limitations on financing of services using federal resources; 2) Reliance on outdated civil commitment laws; and 3) Lack of standardized and systematic coordination of services and resources between the criminal justice system and the community mental health system.

Fortunately, there are promising solutions being developed as the result of problem-solving initiatives at the interface of the criminal justice and mental health arenas. By working collaboratively across systems and disciplines, we now have a greater understanding of the causes and consequences of involvement in the justice system among people with serious mental illnesses. Read the full statement.

Neuroscience, Artificial Intelligence, and the Case Against Solitary Confinement

Abstract:Prolonged solitary confinement remains in widespread use in the United States despite many legal challenges. A difficulty when making the legal case against solitary confinement is proffering sufficiently systematic and precise evidence of the detrimental effects of the practice on inmates’ mental health. Given this need for further evidence, this Article explores how neuroscience and artificial intelligence (AI) might provide new evidence of the effects of solitary confinement on the human brain.

This Article argues that both neuroscience and AI are promising in their potential ability to present courts with new types of evidence on the effects of solitary confinement on inmates’ brain circuitry. But at present, neither field has collected the type of evidence that is likely to tip the scales against solitary confinement and end the practice. This Article concludes that ending the entrenched practice of solitary confinement will likely require both traditional and novel forms of evidence. In exploring the potential effects of neuroscientific evidence on support for solitary confinement, the Article reports results from an original online experiment with a group of 250 ideologically conservative participants. The analysis finds that the introduction of brain injury reduced conservatives’ support for solitary confinement but not to the extent that is likely to make a policy impact. The Article argues that future, more individualized brain evidence may be of greater use, but at present neuroscience is limited in its ability to systematically measure the brain changes that inmates experience in solitary confinement.

This Article then turns to AI and argues that it could be developed to provide litigators and inmates with the ability to more effectively document the detrimental effects of solitary confinement. Looking to the future, the Article lays out a vision for an AI system called “Helios,” named after the Homeric sun god believed to see and hear everything. The Article envisions Helios as a self-learning AI system with a mission to help inmates and their attorneys gather more systematic evidence of the effects of solitary confinement on inmate health. Helios is also a platform on which additional inmate services might one day be provided. The Article describes how Helios must be carefully designed, with particular attention given to privacy concerns.

This Article is organized in seven parts. Part I describes the historical and contemporary use of solitary confinement in the United States, highlighting the known effects of solitary confinement on inmates. Part II summarizes recent constitutional challenges to the practice of solitary confinement. Part III explores the potential for integrating neuroscientific evidence into these legal challenges to solitary confinement. Part IV discusses a new online experiment to explore whether neuroscience might change public opinion on solitary confinement. In Part V, the Article transitions to a consideration of AI. The Article proposes a self-learning system, Helios, and describes how the system would operate. Part VI turns to a series of challenging ethical and legal questions about the design and implementation of Helios. Part VII briefly concludes.

About a Revolution: Toward Integrated Treatment in Drug and Mental Health Courts

Abstract: This Article examines specialty courts, including drug, alcohol, and mental health courts, which proponents claim created a revolution in criminal justice. Defendants whose underlying crime is the result of a substance use disorder or a mental health disorder can choose to be diverted into a specialty court, where they receive treatment instead of punishment. Many of these individuals, however, do not just suffer from a substance use disorder or a mental health disorder; instead, many have a “co-occurring disorder.” Approximately 8.9 million American adults have co-occurring mental health and substance use disorders, and almost half of individuals who meet diagnostic criteria for one disorder will also meet criteria for the other. Moreover, an extensive body of literature has shown that treatment for co-occurring disorders should be integrated and that individuals should receive appropriate mental health and substance abuse treatment from a single clinician or clinical team.

This Article argues that the segregation of drug, alcohol, and mental health courts is out of step with our current understanding of the high rates of co-occurring disorders, and often fails to provide integrated treatment for the multiple disorders a single specialty-court participant might present. Moreover, by segregating specialty courts, we are further stigmatizing addiction and failing to acknowledge that drug and alcohol use disorders are some of the many types of mental illnesses recognized by the medical community. Drug, alcohol, and mental health courts should therefore move away from their traditional siloed approach to the selection and treatment of participants and instead provide individuals with comprehensive and integrated *356 treatment for co-occurring substance use and mental health disorders.

Banning Solitary for Prisoners with Mental Illness: The Blurred Line Between Physical and Psychological Harm

Abstract: The Hole. Segregation. Isolation. Supermax. Lockdown. Special Housing Unit. Restrictive Housing Unit. These are terms used to describe the practice referred to in this Comment as solitary confinement, each evoking a slightly different idea of what it means to lock someone alone in a concrete or steel box for days, weeks, months, years, and sometimes decades on end. “The Hole” paints a grim picture of a dark and lonely place without a chance for escape. “Special Housing Unit” is vague, but ultimately puts a prettier gloss on the practice of extreme isolation. While each term may elicit slightly different feelings among those unfamiliar with what happens inside jail and prison walls, the horrific effects of prolonged and extreme isolation on persons with mental illness are hauntingly consistent.

The medical and scientific communities are in overwhelming agreement: prolonged solitary confinement has devastating effects on persons suffering from mental illness. Indeed, the practice has devastating effects on those who are not afflicted by mental illness. Why then, in a country as developed as the United States, is the practice of placing mentally ill prisoners in extreme and prolonged isolation so pervasive? The reasons are many, but this Comment focuses on the idea of “harm” and how the failure to treat psychological harm as seriously as physical harm erects barriers, which prevent mentally ill persons from getting relief from the torture of solitary confinement.

Abstract: This essay discusses the interface between neuroscience and the law. It underscores the potential for neuroscience to break down the division that currently exists in law between physiological and psychological harm and between physical and mental injury. To show how scientific knowledge can illuminate a complex legal issue, we analyze the recent use of neuroscience in evaluating the harm caused by prolonged solitary confinement.

Abstract: Prison can be characterized as an impoverished environment encouraging a sedentary lifestyle with limited autonomy and social interaction, which may negatively affect self-control and executive function. Here, we aim to study the effects of imprisonment on self-control and executive functions, and we report the change in neuropsychological outcome after 3 months of imprisonment.

Participants were 37 male inmates in a remand prison in Amsterdam, Netherlands, who completed six tests of a computerized neuropsychological test battery (the Cambridge Automated Neuropsychological Test Battery) in the first week of arrival. Participants were retested after 3 months of imprisonment. Change in performance was tested using the Wilcoxon Signed-Rank test.

After 3 months of imprisonment, risk taking significantly increased (measured as an increase in the proportion of available points used for betting) and attention significantly deteriorated (measured as increased variability in reaction times on a sustained attention task), with large to medium effect sizes. In contrast, planning significantly improved (measured with a task analog to the Tower of London) with a medium effect size.

Our study suggests that 3 months of imprisonment in an impoverished environment may lead to reduced self-control, measured as increased risk taking and reduced attentional performance. This is a significant and societally relevant finding, as released prisoners may be less capable of living a lawful life than they were prior to their imprisonment, and may be more prone to impulsive risk-taking behavior. In other words, the impoverished environment may contribute to an enhanced risk of reoffending.

This editorial discusses the Penrose Hypothesis, the theory that if the prison population decreases, the mental hospital population will increase and vice versa. In particular, the author questions whether the deinstitutionalization of state psychiatric hospitals in the 1960s caused criminalization of people with serious mental illness. Read the full article.

“The Prevalence of Delusional Disorder in Prison” by Anthony C. Tamburello, Joanna Bajgier, and Rusty Reeves, The Journal of the American Academy of Psychiatry and the Law (2015)

Abstract: Delusional disorder has important implications for forensic psychiatrists, as delusions are not infrequently related to criminal behavior. Thus, we hypothesized that delusional disorder is over-represented in correctional populations. We conducted a retrospective chart review of the electronic medical records from 2000 to 2012 of New Jersey Department of Corrections inmates who remained incarcerated as of March 2012. Potential cases of delusional disorder were initially identified by using a search for current or past diagnoses of such disorders or other diagnoses that could be misdiagnosed cases. After an initial chart review identified an inmate as having probable delusional disorder according to Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR) criteria, the diagnosis was confirmed by at least one concurring independent review. We estimate a point prevalence of 0.24 percent for delusional disorder in our population, which is eight times higher than that expected in the community. Read the full article.

“Out of Sight, Out of Mind: Mental Illness Behind Bars” by David R. Rubinow, The American Journal of Psychiatry (2014)

In the 1880s, less than one percent of prisoners had mental illness. By the 1970s, that rate was five percent. In the 21st century, the rate of prisoners suffering from mental illness has increased to 30 percent. In this article, the author discusses the history of mental health treatment in the United States, beginning with the 17th century’s Enlightenment that innovated the belief in individual rights. In particular, he discusses the deinstitutionalization movement of the 1960s. Although well-intentioned, deinstitutionalization , according to the article, ultimately led to the warehousing of people with mental illness in correctional facilities. Read the full article.

Abstract:
Importance: In 1939, English mathematician, geneticist, and psychiatrist Lionel Sharples Penrose hypothesized that the numbers of psychiatric hospital beds and the sizes of prison populations were inversely related; 75 years later, the question arises as to whether the hypothesis applies to recent developments in South America.

Objective: To explore the possible association of changes in the numbers of psychiatric hospital beds with changes in the sizes of prison populations in South America since 1990.

Design, Setting, and Participants: We searched primary sources for the numbers of psychiatric hospital beds in South American countries since 1990 (the year that the Latin American countries signed the Caracas Declaration) and compared these changes against the sizes of prison populations. The associations between the numbers of psychiatric beds and the sizes of prison populations were tested using fixed-effects regression of panel data. Economic variables were considered as covariates. Sufficiently reliable and complete data were obtained from 6 countries: Argentina, Bolivia, Brazil, Chile, Paraguay, and Uruguay.

Main Outcomes and Measures: The numbers of psychiatric beds and the sizes of prison populations.

Results: Since 1990, the numbers of psychiatric beds decreased in all 6 countries (ranging from −2.0% to −71.9%), while the sizes of prison populations increased substantially (ranging from 16.1% to 273.0%). Panel data regression analysis across the 6 countries showed a significant inverse relationship between numbers of psychiatric beds and sizes of prison populations. On average, the removal of 1 bed was associated with 5.18 more prisoners (95% CI, 3.10-7.26; P = .001), which was reduced to 2.78 prisoners (95% CI, 2.59-2.97; P < .001) when economic growth was considered as a covariate. The association between the numbers of psychiatric beds and the sizes of prison populations remained practically unchanged when income inequality was considered as a covariate (−4.28 [95% CI, −5.21 to −3.36]; P < .001).

Conclusions and Relevance: Since 1990, the numbers of psychiatric beds have substantially decreased in South America, while the sizes of the prison populations have increased against a background of strong economic growth. The changes appear to be associated because the numbers of beds decreased more extensively when and where the sizes of prison populations increased. These findings are consistent with and specify the assumption of an association between the numbers of psychiatric beds and the sizes of prison populations. More research is needed to understand the drivers of the capacities of psychiatric hospitals and prisons and to explore reasons for their association. Read the full article.

“Some Prosecutors Said to Unfairly Target Those With Mental Illness” by Aaron Levin, Psychiatric News (2014)

According to this article, some legal experts have argued that defendants suffering from mental illness and/or intellectual disability are at increased risk of being unfairly targeted by prosecutors in death penalty cases than other defendants charged with similar crimes. Read the full article.

“Crime, Punishment, and the American Criminal Justice System” by Martin Blinder, The Journal of the American Academy of Psychiatry and the Law (2015)

In this article, the author discusses how crime and punishment are addressed in the American criminal justice system. Read the full article.

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